Endangered Species Act

  • March 30, 2015
    Guest Post

    by David Driesen, University Professor at the Syracuse University College of Law. 

    In November of last year, a federal district court judge in Utah declared a rule protecting the Utah prairie dog under the Endangered Species Act (“ESA”) invalid as beyond Congress’ Commerce Clause power in People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service.  The district court applied Lopez-scrutiny in finding that the Commerce Clause could not regulate takings of the Utah prairie dog, a purely intrastate species, because there was no substantial relation to interstate commerce.  The district court also rejected every argument posited by the Fish & Wildlife Service (“FWS”) in holding that takings of the prairie dog to the point of extinction, and the impacts of the takings on the food-chain and ecosystem writ large, did not affect interstate commerce, thus making the regulations protecting the animal unconstitutional. The FWS has appealed this ruling to the United States Court of Appeals for the Tenth Circuit, which will likely hear argument in the fall. 

    This is not the first case to challenge the ESA’s application to so-called “intrastate species,” and the Courts of Appeal have uniformly rejected such challenges in the past. However, this ruling is important for several reasons. First of all, most species protected by the ESA are located exclusively in one state; an appellate ruling calling into question the constitutionality of intrastate species protection in a circuit with numerous protected species could significantly undermine the ESA. Second, although the judge ostensibly addressed a single rule issued under the ESA, his reasoning constitutes an attack on the Act’s take prohibition, which limits activities harming all protected species. The court’s ruling treats all activities regulated under the ESA as if they were non-economic because this provision does not expressly limit itself to economic activities. If this approach to evaluation of actions implementing the ESA survives, it would imply that the survival of species protected under the Act would depend on inexpert federal judges’ review of science linking a single species to economic impacts, as viewed through the skeptical lens of Lopez. And finally, a ruling upholding the District Court might be interpreted as creating a circuit split leading to Supreme Court review.

  • October 20, 2011
    Dispatches from America's Endangered Species Act
    Joe Roman

    By Joe Roman, a conservation biologist and author.

    Last month, Alaska solicited proposals to quantify the costs of protecting polar bears under the Endangered Species Act. The bear had been listed as threatened in 2008, the first species to be federally protected because of global warming.  Some Alaskans objected, afraid that listing would restrict drilling in the Beaufort and Chukchi Seas, where the bears have critical habitat. At first, the state bankrolled a public relations effort to overturn the listing, but when that effort failed, they looked to alternatives. Could they show that listing the polar bear came at too high a price?

    In my book, Listed: Dispatches from America’s Endangered Species Act, I discuss the tradeoffs involved in protecting rare and threatened species. Alaska’s solicitation is part of an unfortunate tradition that focuses solely on the costs of protecting species, rather than including the many benefits that can come from conservation. In the polar bear’s case, this may include ecotourism, of value to the state; the dependence of the Inuit on the bear for spiritual and physical sustenance; and the preservation of sea-ice habitat, which can benefit us all.

    Beyond these services is the value of conservation itself, whether it’s stewardship, the many people who are employed, or volunteer, to protect the bears, or the value of bequesting the bear to our grand children. And finally there’s the value we put on the very existence of the polar bear -- how much would we pay to keep the bear on earth, whether we or our offspring ever had a chance to see it or not?

  • May 11, 2011
    Guest Post

    By Daniel J. Rohlf, Professor of Law, Lewis and Clark Law School

    In his book Last Chance to See, Douglas Adams – known by most for his cult classic Hitchhikers Guide series – recounts a story based on the Sibylline books. In the tale, a mysterious woman offers to sell the books of knowledge to the residents of a prosperous city, but when they refuse to pay she burns half of the collection. Later, when she renews her offer to sell as the city’s fortunes begin a steady decline, citizens protest that they cannot afford her higher price for the remaining books. She burns more of the books. Finally, when the old woman returns with the single remaining book of knowledge, the now-desperate townspeople pay a dear price for it. “It had better be good,” they cry.

    “It is,” the old woman retorts, “and you should have seen the rest of it.”

    Adams reportedly consideredLast Chance to See, which chronicled his travels to encounter vanishing wildlife, his favorite work. Unfortunately, his allegorical tale about saving endangered species is playing out today in real life in Washington D.C. 

    Congress in 1973 passed the Endangered Species Act (ESA) in a far-reaching effort to identify and conserve imperiled species and the ecosystems upon which they depend. However, recent events on Capitol Hill underscore our faltering efforts – and sometimes even unwillingness – to protect invaluable biological resources at a time when species and their ecosystems are under growing pressures from global as well as local threats.

    For the first time in ESA’s history, Congress in April mandated removal of an endangered species from the Act’s protected rolls when Montana Senator John Tester slipped into the hard-fought budget bill a provision effectively striking gray wolves in the western U.S. from the list of endangered species. To many, this legislative delisting sent a signal that Congress, motivated by the sluggish economy or political opposition by powerful constituencies, may be increasingly willing to strike down conservation measures for species in danger of extinction. A rash of such bills are currently pending before lawmakers

    Another bill proposed by Senator Tester in April perhaps best exemplifies the wrong approach to federal endangered species policies. Reacting to environmental organizations’ efforts to ban a use of lead in ammunition used for hunting – which spreads toxic lead throughout the American landscape -- Tester recently sponsored a bill outlawing federal regulation of lead ammunition. In so doing, Tester ignored the fact that lead annually poisons millions of non-target animals each year; the litany of species killed by lead includes highly endangered California condors, which despite extensive recovery efforts by the U.S. Fish and Wildlife Service (FWS) may again become extinct in the wild simply because they risk lead poisoning whenever they eat. The Montana senator also overlooked lead’s threats to people as well; hunters endanger themselves and their families because tiny pieces of lead often contaminate the meat people consume from game killed with lead bullets. Rather than defending an unacceptable status quo, lawmakers and the executive branch should encourage investment in solutions. Non-lead bullets are as effective as those made with lead, though they cost a bit more and require hunters to change long-held habitats. But modest additional expenditures for non-toxic ammunition and a simple willingness to change ammunition types would pay huge dividends in terms of wildlife saved from lead poisoning, and in the many people spared from ingesting toxic lead fragments. 

  • March 25, 2011
    A federal appeals court has rejected a conservative legal group's argument that federal protections of an endangered species violate the Commerce Clause.

    A unanimous panel of the U.S. Court of Appeals for the Ninth Circuit upheld the federal protections of delta smelt, a small fish endemic to California, against challenges from the Pacific Legal Foundation, which argued that the protections diminished water exports from the Delta, The Sacramento Bee reported. The federal protections of the fish were created pursuant to the Endangered Species Act. The Pacific Legal Foundation argued that the fish are "purely intrastate species," with no "commercial value," and therefore the federal government regulations to protect the fish were "invalid exercises of constitutional authority [under the Commerce Clause]."

    The Ninth Circuit panel disagreed, writing in part, that "Congress has the power to regulate purely intrastate activity as long as the activity is being regulated under a general regulatory scheme that bears a substantial relationship to interstate commerce." Citing the Eleventh Circuit, the panel ruled that "the Endangered Species Act is a general regulatory statute bearing substantial relation to commerce."